Case C-504/07: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 19 November 2007 — Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others v Council of Ministers and Others
Date: 2007-11-19
Institutions: Court of Justice
Subjects: Portugal, State aid, carriage of passengers, interpretation of the law, means of public conveyance, public service, restriction on competition

26.1.2008

EN

Official Journal of the European Union

C 22/31

Reference for a preliminary ruling from the Supremo
Tribunal Administrativo (Portugal) lodged on 19 November
2007 — Associação Nacional de Transportes Rodoviários
de Pesados de Passageiros (Antrop) and Others v Council
of Ministers and Others

(Case C-504/07)

(2008/C 22/56)

Language of the case: Portugese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Associação Nacional de Transportes Rodoviários de
Pesados de Passageiros (Antrop) and Others

Defendant: Council of Ministers and Others

Questions referred

(a) In the light of Articles 73, 87 and 88 of the Treaty and of
Regulation No 1191/69 (1), may the national authorities
impose public service obligations on a public undertaking
entrusted with the provision of public passenger transport
in a municipality?

(b) If the answer is affirmative, must the national authorities

pay compensation in respect of those obligations?

(c) Must the national authorities, where they are not obliged to
hold a tendering procedure for the award of a concession
for
the operation of a transport network, extend the
compensation obligation to all the undertakings which are
regarded, under domestic law and within the same area, as
offering public passenger transport?

(d) If the answer is affirmative, what criterion must apply to the

payment of compensation?'

(e) In the case of undertakings providing passenger transport
by bus which, by virtue of a public concession, carry on
their activity on an exclusive basis within specified urban
districts, but also carry on that activity in competition with
private operators outside the urban areas covered by such
exclusivity, does the grant by the State, year by year, of aid
intended to cover the constant operating deficits of such
undertakings amount to State aid prohibited by Article 87(1)
EC, where:

(i) it is not possible to ascertain on the basis of reliable
data from the relevant accounts the difference between
the costs imputable to the part of the activity of those
undertakings in the area covered by the concession and
the corresponding income and consequently it is not
possible to calculate the additional cost deriving from
the performance of public service obligations which,
under the terms of the concession, may attract State
aid?

(ii) the supply of transport services by the said undertak-
ings may, as a result, be maintained or increased, which
entails the consequence that the opportunities for other
undertakings established in this or in another Member
State to provide their transport services may be dimin-
ished?

(iii) and notwithstanding the provisions of Article 73 of the

Treaty?

(f) Having regard to the conditions which the Court of Justice
lays down regarding the present Article 87(1)
(formerly
92(1)), in particular in its judgment of 24 July 2003 in Case
C-280/00 Altmark (2), for classification of State aid (‘First,
there must be an intervention by the State or through State
resources. Second, the intervention must be liable to affect
it must confer an
trade between Member States. Third,
advantage on the recipient. Fourth,
it must distort or
threaten to distort competition.’), what is the meaning and
scope of
the expressions (i) conferring of an advantage
(ii) which distorts competition, in a situation in which the
beneficiaries have exclusive rights for public passenger trans-
port services in the cities of Lisbon and Oporto but also
operate links to those cities, in areas where other operators
are also active? In other words, what criteria must we apply
in order to be able to conclude that the conferring of an
advantage distorts competition? In that connection, is it rele-
vant to ascertain the percentage of costs which, as far as the
undertakings are concerned,
is attributable to transport
services operating outside the area of exclusivity? In short, is
it necessary that the aid has repercussions on the activity
carried on outside the exclusivity area (Lisbon and Oporto)
in clearly significant terms?

(g) Is the intervention by the Commission provided for in Arti-
cles 76 and 88 of the Treaty the only legal way of enforcing
the Treaty rules on State aid or does the effectiveness of
Community law additionally require, in particular, the possi-
bility of direct application of those rules by the national
courts at
those private individuals who
consider themselves to be adversely affected by the grant of
a subsidy or aid contrary to the competition rules?

the request of

(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
action by Member States concerning the obligations inherent in the
concept of a public service in transport by rail, road and inland
waterway (OJ English Special Edition: Series I Chapter 1969(I),
p. 276).

(2) C-280/00, [2003] ECR I-7810.